What Is Fair Use: Baby Don’t Sue Me, Don’t Sue Me, No More

Progressive content creators and copyright scholars alike rejoiced on April 25, 2013, when the United States Court of Appeals for the Second Circuit issued its opinion in Cariou v. Prince.[1] That decision, by reversing and remanding the decision of the district court, reaffirmed or even broadened the scope of the Fair Use defense in copyright infringement matters, as least to the extent that they occur in the Second Circuit.[2] But, as with any high-profile opinion, opportunities for confusion abound. What follows, then, is a primer on the concept of Fair Use, followed by an explanation of the Cariou opinion.

What’s So Fair About Use, Anyway?

Copyright law provides content owners with the exclusive right to: make copies; make adaptations, translations and other derivative works; publicly distribute; publicly display; and publicly perform their works.[3] Because those rights are exclusive, if another party exploits a copyrighted work without permission from the content owner, then the content owner can seek money damages and injunctions. But a content owner’s rights are not unlimited. In addition to some other narrow exceptions to the exclusive rights,[4] content owners cannot prevent another party from incorporating elements of the content owner’s copyrighted work if the use of that work meets the standards of Fair Use.

According to the Copyright Act, a use of a copyrighted work is non-infringing if it is “for purposes such as criticism, comment, news reporting, teaching…scholarship, or research.”[5] To determine whether a given use of a copyrighted work is Fair Use, the Copyright Act asks courts to take into consideration the following four factors:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.[6]

Those factors aren’t exclusive, nor are they treated in isolation from one another. Theoretically, the courts balance all four of them relatively equally. But in practice, some courts have held that the first factor, sometimes referred to as the “transformative use” factor, is the most important. A work that is transformative incorporates the underlying copyrighted work in a way that transforms it into a new work.The best—but certainly not only—example of transformative use, is parody. In parody, the parodist transforms the underlying copyrighted work by holding it up to ridicule.

Some courts, though, have held that a use of a copyrighted work is not transformative unless it is “for purposes such as criticism, comment, news reporting, teaching…scholarship, or research.” In Cariou, it was the failure of Prince’s work to comment on the underlying copyrighted work that drew the ire of the district court. By requiring content creators to comment on the underlying work in order to avail themselves of Fair Use, the district court’s opinion in Cariou threatened to limit the scope of Fair Use.

Care to Comment?

In 2008, an artist named Richard Prince published a book called Canal Zone that incorporated and altered photographs from a book, published in 2002, called Yes, Rasta by Patrick Cariou. One of Prince’s pieces from Canal Zone is copied above. Prince’s work is displayed on the right. When Cariou saw Prince’s work, he sued, and in 2011 the district court ruled against Prince, stating that because Prince’s work did not comment on the underlying copyrighted works, it was not transformative and therefore not subject to Fair Use. More specifically, the district court found that Prince’s work commented on medium (collage) rather than the underlying work, and that thus it did not transform Cariou’s photograph or provoke discussion of Cariou’s themes. Prince appealed.

In reversing the judgment of the lower court, the circuit court held, “[T]he district court applied the incorrect standard to determine whether Prince’s artworks make fair use of Cariou’s copyrighted photographs.” The “incorrect standard” was stating that a work is not transformative unless it comments on the underlying work. Assuming that the circuit court’s opinion holds (i.e., that the case is not appealed to the Supreme Court of the United States and then overturned), the Cariou decision either broadens the concept of Fair Use or returns it to its proper strength as a shield against claims of copyright infringement.

What Does It All Mean?

Fair Use is nebulous by design, which is good because it forces courts to examine each alleged Fair Use before issuing an opinion, but problematic because the balancing of the Fair Use factors is so fact-specific that it can be hard to draw parallels from a litigated case to, for example, the editing room for a feature film. Recognizing that such uncertainty works to their advantage, some content owners aggressively enforce their copyrights, even in cases where Fair Use would almost certainly apply. Instead of fighting allegations of copyright infringement in such cases, content creators are more likely to simply cut the offending material from the final product. And then the next project they work on, they might be overly cautious as far as incorporating such elements.[7]

Having a case like Cariou on the books is good because it gives content creators and attorneys another case to consult in determining whether Fair Use is likely to apply in a given situation. Hopefully the Cariou decision signals a new approach by the courts—and not just the Second Circuit—to accord Fair Use its proper strength. As always though, it is a good idea to consult an attorney, preferably as you’re working on your project, but certainly if you receive a cease and desist letter relating to your use of a copyrighted work, or if you think you may need to send such a letter to someone else for what you believe is an impermissible use of your copyrighted work. The Cariou decision does shed some light on some aspects of Fair Use, and at a bare minimum is effective persuasive authority, but the reality is that Fair Use remains convoluted. Doing your due diligence on the front end of your project can save you a lot of time on the back end, and ensure that you’re better informed the next time a content owner comes calling with a cease and desist letter.

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